IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robbin E. Chavis, :

Plaintiff : Civil Action 2:11-cv-00917

v. : Judge Graham

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Robbin E. Chavis brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

her application for Disability Insurance and Supplemental Security Income benefits. 

This matter is before the Magistrate Judge for a report and recommendation on the

parties’ cross-motions for summary judgment.

Summary of Issues. Plaintiff Robbin E. Chavis maintains she became disabled at

age 42 by psychological impairments, obesity, cystitis, irritable bowel syndrome,

migraine headaches, and thorocolumbar scoliosis. Chavis completed two years of

college and has worked as an administrative assistant and a customer service

representative. She last worked in September 2007. The administrative law judge found

that Chavis retained the ability to perform light work involving simple, routine tasks

with occasional contact with coworkers and no contact with the public. 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

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• The administrative law judge's finding that several of her mental impairments

were non-severe was medically inaccurate, unreasonable, and prejudicial;

• The administrative law judge unquestioningly accepted the state agency

opinions while slandering the treating sources;

• The hypothetical questions posed to the vocational expert failed to include

limitations in the medical opinions adopted by the administrative law judge as

the basis for plaintiff's residual functional capacity;

• The administrative law judge failed to analyze the effects of plaintiff's obesity

as required by Social Security Ruling 02-1p; and,

• The administrative law judge failed to properly assess the limitations and

symptoms of interstitial cystitis as required by Social Security Ruling 02-2p.

Procedural History. Plaintiff Robbin E. Chavis filed her application for disability

insurance benefits on January 12, 2009, alleging that she became disabled on September

2, 2007, at age 42, by bi-polar disorder, anxiety, depression, and irritable bowel

syndrome. (R. 167-76, 210.) The application was denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

On December 29, 2010, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (R. 47.) A vocational expert also

testified. On January 26, 2011, the administrative law judge issued a decision finding

that Chavis was not disabled within the meaning of the Act. (R. 26.) On August 26,

2011, the Appeals Council denied plaintiff’s request for review and adopted the

administrative law judge’s decision as the final decision of the Commissioner of Social

Security. (R. 1-6.)

Age, Education, and Work Experience. Robbin E. Chavis was born June 30,

1965. (R. 167.) She has a high school education and completed two years of college. 

(R. 217.) She has worked as an administrative assistant and a customer service

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representative at a insurance call center and cell phone call center. She last worked

October 19, 2007. (R. 210.) 

Plaintiff’s Testimony. Plaintiff Robbin Chavis testified that she lived alone in a

disability apartment complex. She drove to the grocery store about once a week. She

finished the 11th grade in high school and earned her GED. She completed two years of

college and earned an associate’s degree in criminal justice. 

Plaintiff testified that she had problems with her memory. The longest job she

held was as a shift leader for Chipotle, which lasted 11 months. She was fired for

absenteeism. Her other jobs lasted only approximately two or three months. Her

absenteeism was the result of depression and anxiety. She also had nightmares that

caused her to lose sleep. She is treated by a psychiatrist for bipolar disorder, posttraumatic stress disorder, and a personality disorder. She also received treatment from a

psychologist. 

She had a hard time concentrating. Her medications caused her to shake and the

resulting embarrassment increased her depression. Lithium caused her to shake, but

other medications have not worked as well. 

Chavis testified that she had a few friends that she talked to. She enjoyed

watching movies, although she had difficulty following a plot.

Chavis testified that she had fibromyalgia. She took Lyrica for fibromyaligia,

which provided some relief at times. After undergoing a colon resection, she could no

longer lift anything over 10 pounds. She also suffered from migraine headaches and

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had arthritis in her feet. She reported that she was depressed and cried a lot. She did not

like to be around crowds of people. She was able to use the telephone and the phone

book. She did not have a bank account.

She was hospitalized once for attempting suicide. She visited her grandson a

couple of times of week, which reduced her suicidal thoughts. She had nightmares and

flashbacks every night. She had thoughts of wanting to cut herself to release her

emotional pain and transfer it to physical pain. She had frequent diarrhea and had to go

to the bathroom seven or eight times a day. 

It was her decision to attend vocational rehabilitation. She used to smoke

marijuana because she had a poor appetite. She was convicted of forgery in 1999. 

(R. 52-68.) 

Medical Evidence of Record.

Physical Impairments. 

Licking Memorial Hospital. On April 11, 2007, plaintiff presented at the

emergency room with complaints of migraine headaches. (R. 391.) 

On May 2, 2007, plaintiff was admitted for nausea, vomiting, abdominal pain

and a headache. (R. 365, 371.) Chavis underwent a CT scan of her abdomen and pelvis.

There was no evidence of renal or ureteral lithiasis. (R. 364.) Plaintiff was diagnosed

with a urinary tract infection with history of chronic interstitial cystitis. (R. 388.) 

On June 14, 2007, plaintiff presented at the emergency room for evaluation of

knee pain. (R. 358.) On October 18, 2007, plaintiff was treated at the emergency room for

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a headache. (R. 347.) On November 16, 2007, plaintiff presented at the emergency room

with complaints of a migraine and nausea. (R. 333.) 

In March 2009, plaintiff reported having blood in her urine and suprapubic pain.

(R. 1222.) She was diagnosed with chronic interstitial cystitis. (R. 1227.)

Angela M. Morris, M.D. On December 14, 2007, Dr. Morris began treating

Chavis. Plaintiff reported that she had a falling out with her previous doctor. Plaintiff

was diagnosed with bipolar disorder when she was in her 20s. It had worsened in the

last 7-10 years. She reported feeling moody and having poor concentration. She said she

could not function day-to-day. Xanax had provided some relief. Plaintiff also had severe

interstitial cystitis and bad migraines. (R. 879-84.) On January 8, 2008, plaintiff

telephoned the nurse and reported that her medication was not working. Plaintiff was

instructed to go to the emergency room for evaluation. (R. 890.) On February 14, 2008,

plaintiff telephoned the doctor’s office following a visit to the emergency room. Plaintiff

had continued shortness of breath, and she was instructed to return to the emergency

room. (R. 898.) 

On April 22, 2008, plaintiff complained of fast-paced breathing while exercising

and numbness in her arms. Plaintiff had lost 10 pounds in the past two months from

exercising. She was incontinent twice the day before and had back pain. (R. 917-21.) 

W. Jerry McCloud, M.D. On April 29, 2009, Dr. McCloud, a state agency

physician, reviewed the record and opined that plaintiff’s physical impairments were

not severe. (R. 1248.) 

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John Abad, M.D. In August 2009, Dr. Abad, a primary care physician, noted that

plaintiff reported having blood in her urine. Plaintiff had severe left flank pain, which

was worsened by walking and relieved by Vicodin. (R. 1336-37.)

In September 2009, plaintiff complained of flank pain. (R. 1335.) In November

2009, plaintiff complained of left flank pain after running out of Vicodin, urinary

frequency, and blood in her urine. (R. 1386-87.) Plaintiff was ambulatory with a steady

gait and appeared comfortable. (R. 1386-88.) 

Bodo Knudsen, M.D. In an August 2009 urology consultation, Dr. Knudsen noted

that plaintiff complained of urinary frequency, urgency and dysuria. (R. 1344.) She had

no episodes of urinary retention. Her bladder was not distended, and she had no flank

tenderness. Dr. Knudsen referred plaintiff to Dr. Gilleran for further management of her

symptoms. (R. 1345.)

Jason P. Gilleran, M.D. On November 5, 2009, Dr. Gilleran conducted diagnostic

procedures on plaintiff’s bladder and diagnosed her with mild cystitis. (R. 1588.) A CT

scan of plaintiff’s abdomen and pelvis showed a possibility of minimal debris in the

urinary bladder. (R. 1378.) Retrograde pyelograms were unremarkable. (R. 1585.)

Plaintiff’s bladder could hold over 1200 ml and did not show any significant petechiae

or glomerulations. There was one small area of focal redness. (R. 1585.) The findings

were not “necessarily diagnostic for interstitial cystitis.” He suspected that her pelvic

pain was outside the bladder and suggested additional treatment options. (R. 1585.) 

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Ralph Graham, M.D. On December 15, 2009, Dr. Graham completed a case

analysis and summarized the record as follows:

This is an appeal of a claim initially based on anxiety and other

psychological, [irritable bowel syndrome] which is adversely affected by

the depression and anxiety. She reports problems lifting and carrying due

to her left knee but she is not applying for that. Other than the lifting and

carrying she makes no other allegations of functional limitations on the

application. On the ADL form she only circled psychological limitations.

She can walk 2 miles without needing to stop. Symptoms report indicates

insomnia and other psychological conditions. Statements from [claimant]

are credible since there is no functional loss alleged. Third party

assessment regarding balance and walking is not consistent with the other

MER and is not given full credibility. Medical records show no complaints

of loss of balance or knee problems. Pre-operative evaluation 6/30/09

Licking [Memorial] does not list any such problems in the past history.

. . . 

[Claimant] has a BMI 31 but has not had complications as a result.

She did have irritable bowel syndrome. Since the finding of a not severe

impairment on initial on 6/02/09 [claimant] had a sigmoid colectomy

[with] low pelvic anastomosis. Following surgery (6/28) she had an

evaluation at the ER for her abdominal wound. At that time she had no

[complaints of] anorexia, abdominal pain, nausea, diarrhea, vomiting or

appetite changes. Also pertinent negative findings include gait changes,

vertigo, headache and paralysis. She does have [a history of] migraines,

but no recent IP/ER/OV. Her final [diagnosis] was factitious melena and

wound check. 

(R. 1359.) 

Psychological Impairments. 

Eric M. Layne, M.D. On January 10, 2008, Dr. Layne, a psychiatrist, began

treating Chavis. Plaintiff was referred to Dr. Layne by her primary care physician based

on increasing complaints related to her bipolar disorder. She reported being

significantly depressed for the past 7 years. She had a history of abusive relationships

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and difficulty maintaining a job. She experienced a lot of anxiety, anger, and irritability.

Her sleep was poor, and her energy level was low. She had racing thoughts. Her

appetite varied. She experienced anhedonia, poor focus, and feelings of guilt. She had

occasional nightmares and was easily startled. With respect to symptoms of mania,

plaintiff acknowledged experiencing periods of mania lasting 3 to 4 weeks that included

grandiosity, decreased need for sleep, impulsivity, increased socialization, and racing

thoughts. She reported a history of marijuana use and still used it approximately twice a

year. Dr. Layne diagnosed bipolar disorder, type I, most recent episode mixed, severe

without psychotic features and rule out diagnoses of obsessive compulsive disorder and

post-traumatic stress disorder. He assigned a Global Assessment of Functioning

(“GAF”) score of 55. (R. 759-62.) 

On February 6, 2008, plaintiff reported that her medications had been stolen. Dr.

Layne refilled her prescription for Klonopin, but he warned her he would not do so

again. Plaintiff reported anxiety and tearfulness. She had low motivation and was

isolating herself. Her sleep and energy level were variable. (R. 764-65.) On March 19,

2008, plaintiff reported increased depression and occasional passive suicidal thoughts.

She described herself as moody and irritable. Her sleep was poor, and her energy level

was low. She reported increased anxiety attacks. She had racing thoughts. She reported

poor appetite and some weight loss. She had crying spells and passive thoughts about

death. (R. 767-68.) 

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On April 21, 2008, plaintiff reported sensory and motor deficits on her left side.

She reported jerking and strange movements in her left arm and leg. She had a

tendency to drop or throw things. She also reported numbness and tingling. She slept

only 2 to 3 hours per night. Her affect was bright, reactive, potentially slightly

hypomanic. Her current GAF score was 60-65. (R. 770-71.) On June 2, 2008, plaintiff

reported that she was “better I guess.” (R. 773.) Dr. Layne encouraged her to look for

work. Id.

On August 4, 2008, plaintiff reported that her energy level was good and that her

mood was okay. Her mood was more stable although she still had highs and lows. She

had some irritability, but she denied anhedonia. She walked regularly. Dr. Layne

encouraged Chavis to use as little Klonopin as possible and to plan to discontinue using

it. (R. 1064-66.) On October 6, 2008, Dr. Layne assigned a GAF score of 70. Plaintiff

reported that things had been great. She had scheduled an appointment with Bureau of

Vocational Rehabilitation (“BVR”). Her focus and concentration had improved. (R.

1067.) 

On January 5, 2009, Dr. Layne assigned plaintiff a GAF score of 60. Plaintiff

reported that things have been horrible. She obtained a job through BVR, but it only

lasted two days. On Christmas, she put a loaded gun in her mouth, but since that time

she asked her roommate to put all the guns away. She only slept 2-3 hours per night

and had night terrors. She had racing thoughts, feelings of worthlessness, and low

appetite. (R. 1070-71.) On February 17, 2009, plaintiff reported that things had been

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rough. She was depressed and temperamental. She isolated herself. She had a lot of

physical complaints, which had increased her anxiety. On March 31, 2009, plaintiff

reported that her mood had not been bad. She had her own apartment. Her sleep and

energy level were good. She had been able to minimize her Klonopin use. She had been

more social. (R. 1493-94.) On June 16, 2009, plaintiff reported that she had been

hospitalized for ongoing GI problems and had a partial colectomy. Her mood was

somewhat irritable. She was tearful and mildly dysphoric. She was sleeping well, but

she had nightmares. She had enjoyed reading. (R. 1491-92.) On August 11, 2009,

plaintiff reported that she had been anxious lately. She recently discovered that one of

her kidneys was swollen and she was concerned that she was becoming very physically

ill. (R. 1489-90.) On September 22, 2009, plaintiff reported that her mood had been up

and down. She had some dysphoria, irritability, and anxiety. (R. 1487-88.) On

November 3, 2009, Dr. Layne noted that plaintiff had been relatively stable. Plaintiff

only used one Klonopin in the last six weeks. Her sleep remained poor. (R. 1485-86.) 

On January 12, 2010, plaintiff complained of depression. She had been

experiencing mood swings, irritability, tearfulness, and passive thoughts about death.

(R.1 483-84.) On February 1, 2010, Dr. Layne noted that plaintiff had been continuing to

struggle. Plaintiff blamed her physical problems for her difficulty sleeping. (R. 1481-82.)

On March 1, 2010, plaintiff reported that she was a mess. She was depressed and

isolating herself. She had low motivation, tearfulness, and passive suicidal thoughts. (R.

1479-80.) On March 22, 2010, plaintiff reported that she had been irritable and isolating

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herself. She was experiencing symptoms of depression and anxiety. Dr. Layne assigned

a GAF score of 55. (R. 1477-78.) On April 21, 2010, plaintiff reported that things had

been a little better. She had been walking. She was recently diagnosed with

fibromyalgia. She had nightmares. Her appetite was good. (R. 1475-76.) On June 24,

2010, plaintiff reported that things had been going pretty well. She was not experiencing

sustained dysphoria or significant anxiety. (1473-74.) On August 27, 2010, plaintiff

reported that her emotions had been “all over the place,” which she attributed to her

hormone replacement therapy. She had been expanding her social network and doing

some volunteer work. She tried to walk on a daily basis. (R. 1471-72.) On October 8,

2010, plaintiff reported that things were up and down. Her sleep remained disrupted by

nightmares. She denied sustained dysphoria or significant anxiety. She had continued

to do some walking, but she had developed foot pain. Her appetite was fair. On mental

status examination, her affect was fairly reactive and slightly tearful at times. (R. 1469-

70.) 

On October 20, 2010, Dr. Layne completed a mental residual functional capacity

questionnaire. With respect to social interaction, Dr. Layne opined that plaintiff had

marked limitations in her abilities to accept instruction from or respond appropriately

to criticism from supervisors and to work in coordination with or in proximity to others

without distracting them or exhibiting behavioral extremes. Plaintiff had moderate

limitations in her ability to respond appropriately to co-workers or peers and to relate to

the general public and maintain socially appropriate behavior. With respect to

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sustained concentration and persistence, Dr. Layne opined that plaintiff had marked

limitations in her abilities to perform and complete work tasks in a normal workday or

week at a consistent pace, to work in cooperation with or in proximity to others without

being distracted by them, to maintain attention and concentration for more than brief

periods of time, and to perform at production levels expected by most employers. She

was moderately limited in her abilities to process subjective information accurately and

to use appropriate judgment and to carry through instructions and complete tasks

independently. With respect to adaptation, plaintiff had marked impairments in her

abilities to respond appropriately to changes in work setting, to behave predictably,

reliably and in an emotionally stable manner. She had moderate impairment of her

abilities to remember locations, workday procedures and instructions and to be aware

of normal hazards and take necessary precautions. She had mild impairment of her

ability to maintain personal appearance and hygiene. Plaintiff had marked impairment

of her ability to tolerate customary work pressures. Plaintiff’s condition was likely to

deteriorate if she was placed under stress, particularly the stress of a job. Dr. Layne

noted that plaintiff had limited ability to avoid being distracted, irritable, and anxious

in stressful, demanding situations. (R. 1497-99.)

Moundbuilders Guidance Center. Lisa Marie Green, M.S., L.P.C.C., counseled

plaintiff from November 29, 2007 through September 11, 2008. (R. 1049-60.) Plaintiff

received psychotherapy from Karen Jane Kaston, M.S.W., L.I.S.W. from October 30,

2008 through December 11, 2008 (R. 1046-48.) 

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Floyd Sours, M.A. On March 14, 2008, Mr. Sours completed a psychological

evaluation at the request of the Bureau of Disability Determination. Plaintiff was

arrested in 1999 for forgery. In 1999 or 2000, she was arrested for shoplifting. She

reported that she did not have any alcohol or drug problems or past substance abuse

treatment. She reported anxiety and depression. She was treated by a psychiatrist and

received counseling from Moundbuilders Guidance Center. When she was in her 20s,

she was hospitalized for a suicide attempt. She was diagnosed with manic depression

and possibly post-traumatic stress disorder. 

Plaintiff reported that she had had many jobs off and on for short periods of

time. She usually left jobs because of depression and panic attacks. She reported that

she was fired many times. 

On mental status examination, Chavis exhibited an adequate, but minimal, range

of emotion. She reported feeling depressed on a daily basis. She experienced

withdrawal, poor concentration, loss of interest in things, over-ideation, mood swings,

and high energy. She was argumentative and at times grandiose. She took lithium. She

slept poorly. She had suicidal ideation without a plan. Her appetite was adequate.

Robbin reported 4 to 5 panic attacks in the past two weeks. She experienced a rapid

heartbeat, sweating, dizziness, black-outs, nausea, shortness of breath, hyperventilation,

and hot and cold flashes. She was afraid of closed places and heights, but her fears were

not disabling. 

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Chavis was oriented in all four spheres. She could recall the four most recent

presidents and four digits forward. Her memory function was at least marginally intact.

She had less than marginal insight and only marginal judgment. 

Plaintiff’s daily activities included waking up between 5:30-6:00 a.m., taking care

of personal hygiene, eating, taking medicine, watching television, playing movies or

video games, and doing some housework. Her hobbies included painting, making

candles, and reading. Because of her depression, she did not do her hobbies anymore. 

Mr. Sours diagnosed bipolar disorder, mixed and panic disorder. He assigned a

GAF score of 55. (R. 735-38.) Mr. Sours concluded:

1. Robbin was able to understand and follow instructions throughout

the interview. It is this examiner’s opinion that there would be no

known impairment in this area in a work setting at present.

2. Robbin was able to maintain sufficient attention to perform simple

repetitive tasks. However, it is this examiner’s opinion that she

would have moderate impairment in a work setting as a result of

bipolar and panic disorder symptomatology impacting in a work

setting.

3. She was able to relate to this examiner in the interview. However,

due to bipolar disorder and panic disorder, it is this examiner’s

opinion that a mild impairment in a work setting would exist at

present.

4. Robbin would have a moderate impairment in the area of

withstanding the stress and pressures associated with day-to-day

work activities.

(R. 738.) 

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John Waddell, Ph.D. On March 27, 2008, Dr. Waddell, a psychologist, reviewed

the record and completed a psychiatric review technique and a mental residual

functional capacity assessment. (R. 741-58.) Plaintiff was diagnosed with bipolar

disorder, mixed and panic disorder. Dr. Waddell concluded that plaintiff had mild

restriction of activities of daily living, moderate difficulties in maintaining social

functioning, moderate difficulties in maintaining concentration, persistence or pace, and

no episodes of decompensation.

With respect to understanding and memory, plaintiff had no significant

limitations. With respect to sustained concentration and persistence, she was

moderately limited in her abilities to perform activities within a schedule, maintain

regular attendance, and be punctual within customary tolerances; to work in

coordination with or proximity to others without being distracted by them; and to

complete a normal workday and workweek without interruptions from psychologically

based symptoms and to perform at a consistent pace without an unreasonable number

and length of rest periods. She had no significant limitations with respect to social

interaction. With respect to adaption, she was moderately limited in her ability to

respond appropriately to changes in the work setting. 

Dr. Waddell gave equal weight to consulative examiner and Chavis’s treating

physician. She was capable of performing simple as well as more complex task

instructions in a setting that did not require a fast pace or high production quotas. She

required a relatively static environment. Chavis would also do better in a setting that

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did not require much interaction with others. Plaintiff’s allegations appeared credible.

(R. 757.) 

Joan Williams, Ph.D. On April 2, 2009, Dr. Williams, a psychologist, reviewed the

record and completed a psychiatric review technique and a mental residual functional

capacity assessment. (R. 1194-1211.) Dr. Williams concluded that plaintiff had mild

restriction of activities of daily living, moderate difficulties in maintaining social

function, moderate difficulties in maintaining concentration, persistence or pace, and no

episodes of decompensation. 

With respect to understanding and memory, Dr. Williams opined that plaintiff

was moderately limited in her abilities to understand and remember detailed

instructions, to maintain attention and concentration for extended periods and to work

in coordination with or proximity to others without being distracted by them, and to

complete a normal workday and workweek without interruptions from psychologically

based symptoms and to perform at a consistent pace without an unreasonable number

and length of rest periods. With respect to social interaction, plaintiff was moderately

limited in her abilities to interact appropriately with the general public; to accept

instructions and respond appropriately to criticism from supervisors, and to get along

with coworkers or peers without distracting them or exhibiting behavioral extremes.

With respect to adaptation, plaintiff was moderately impaired in her ability to respond

appropriately to changes in the work setting. 

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Dr. Wilson concluded that plaintiff’s allegations were not entirely credible.

Chavis told her psychiatrist that her BVR work attempt failed because of her mental

impairment, but this was not supported by BVR’s records, which indicated that plaintiff

had a successful adjustment to work. The BVR noted that physical factors caused

plaintiff to fail at her attempt. 

Claire Robitaille, Ph.D. Dr. Robitaille, a clinical psychologist, provided

psychotherapy to Chavis from August 2009 through October 2010. (R. 1592-1642.) Dr.

Robitaille diagnosed plaintiff with bipolar disorder and noted secondary diagnoses of

sexual abuse, an unspecified relational problem, and an unspecified personality

disorder. Dr. Robitaille consistently found plaintiff cooperative and alert and that her

thought process was within normal limits. (R. 1593-96, 1602, 1604, 1606, 1608-10, 1612-

13, 1615-16, 1621, 1623, 1628, 1631, 1636-37.) Plaintiff reported depression related to her

health issues and stressful life circumstances. (R. 1615-16, 1619, 1621, 1623, 1626, 1628).

In March 2010, Dr. Robitaille’s treatment notes indicated that plaintiff’s mood and affect

were normal. (R. 1595-96, 1604, 1606.) Plaintiff was described as improving. (R. 1595-96,

1604, 1606.) 

On August 21, 2009, Dr. Robitaille completed a mental status questionnaire and a

daily activities questionnaire. (R. 1321-25.) She described plaintiff as generally

depressed. Dr. Robitaille diagnosed plaintiff with bipolar disorder, most recently

depressed. She described plaintiff’s ability to remember, understand, and follow

directions and maintain attention as good. Plaintiff’s ability to sustain concentration,

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persist at tasks, and complete them in a timely fashion was poor. Plaintiff avoided social

interaction and new situations. Plaintiff had poor stress tolerance, fear of social

interaction, and poor social skills. Chavis’s abilities to prepare food, perform household

chores, attend to personal hygiene, shop, drive, and pay her bills were good. Chavis

attended counseling on a regular basis. 

On October 29, 2010, Dr. Robitaille completed a mental residual functional

capacity questionnaire (R. 1500-02.) With respect to social interaction, plaintiff had

marked limitations in her ability to accept instruction from or respond appropriately to

criticism from supervisors, to respond appropriately to co-workers or peers, and to

relate to the general public and maintain socially appropriate behavior. Plaintiff had

moderate impairment of her ability to work in coordination with or in proximity to

others without distracting them or exhibiting behavioral extremes. With respect to

sustained concentration and persistence, plaintiff had marked impairments of her

abilities to perform and complete work tasks in a normal work day or week at a

consistent pace and to work in cooperation with or in proximity to others without being

distracted by them. Plaintiff had extreme impairment in her abilities to carry through

instructions and complete tasks independently, to maintain attention and concentration

for more than brief periods of time, and to perform at production levels expected by

most employers. Plaintiff was moderately limited in her ability to carry through

instructions and complete tasks independently. With respect to adaption, plaintiff had

marked impairment of her ability to respond appropriately to changes in work setting

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and extreme impairment of her ability to behave predictably, reliable and in an

emotionally stable manner. She had moderate impairment in her ability to remember

locations, workday procedures and instructions. Plaintiff was mildly limited in her

abilities to be aware of normal hazards and take necessary precautions and to maintain

personal appearance and hygiene. Plaintiff was extremely limited in her ability to

tolerate customary work pressures. Dr. Robitaille noted that plaintiff had difficulty

managing her anxiety in a structured situation that requires continuous expectations,

interactions, and adjustments. Plaintiff had significant depression and anxiety. (R. 1501-

02.) 

Kevin Edwards, Ph.D. On September 7, 2009, Dr. Edwards, a psychologist,

completed a case analysis on reconsideration. He noted that plaintiff was cooperative,

irritable, and anxious. Plaintiff went outside everyday, shopped every two to three

weeks, and attended a monthly support meeting. (R. 138.) 

Administrative Law Judge’s Findings. 

1. The claimant meets the insured status requirements of the Social

Security Act through June 30, 2012.

2. The claimant has not engaged in substantial gainful activity since

September 2, 2007, the alleged onset date (20 CFR 404.1571 et seq.,

and 416.971 et seq.).

3. The claimant has the following severe impairments: bipolar

disorder, status post sigmoid colectomy with low pelvic

anastomosis, history of irritable bowel syndrome, and interstitial

cystitis (20 CFR 404.1520(c) and 416.920(c)).

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4. The claimant does not have an impairment or combination of

impairments that meets or medically equals one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)

such that the claimant can lift and carry 20 pounds occasionally,

and 10 pounds frequently, sit for a total of 6 hours in an 8 hour

workday, with normal breaks, stand and walk for a total of 6 hours

in an 8 hour workday, with normal breaks, and push and pull

within those limitations. She cannot climb ladders, ropes, or

scaffolds. The claimant is limited to simple routine tasks, with only

occasional contact with coworkers, and no contact with the public. 

6. The claimant cannot perform her relevant work (20 CFR 404.1565

and 416.965).

7. The claimant was born on June 30, 1965 and was 42 years old,

which is defined as a younger individual age 18-49, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and

communicates in English (20 CFR 404.1564 and 416.964).

9. At the claimant’s age the issue of transferable skills is not material

(20 CFR 404.1568 and 416.968). 

10. Considering the claimant’s age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 

11. The claimant has not been under a disability, as defined in the

Social Security Act, from September 2, 2007, through the date of

this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. 18-25.) 

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Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner's findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial evidence, the Court

must "'take into account whatever in the record fairly detracts from its weight.'" Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge's finding that several of her mental impairments

were non-severe was medically inaccurate, unreasonable, and prejudicial.

Plaintiff maintains that the administrative law judge erred when he concluded

that many of plaintiff’s alleged mental impairments have not resulted in any

significant limitation in her ability to perform basic work activities. The

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administrative law judge only acknowledged plaintiff’s diagnosis of bipolar

disorder as a severe impairment. The administrative law judge refused to

recognize that plaintiff’s anxiety and depression were severe. The

administrative law judge improperly evaluated her credibility based on her

felony conviction and history of engaging in illicit drug use. 

• The administrative law judge unquestioningly accepted the state agency

opinions while slandering the treating sources. Plaintiff argues that the

administrative law judge failed to evaluate the medical opinions in the record

using the factors outlined in 20 C.F.R. § 404.1527(d). Plaintiff’s treating

physicians have the benefit of providing a longitudinal view of her history.

This opinion evidence is particularly appropriate when the severity of an

impairment has fluctuated over time. Chavis also argues that the

administrative law judge made his own independent findings and only gave

weight to those conclusions of the reviewing physicians. Plaintiff maintains

that the administrative law judge slandered Drs. Layne and Robitaille by

stating that there opinions were “premised on compensation purposes.”

• The hypothetical questions poses to the vocational expert failed to account for

limitations in the medical opinions adopted by the administrative law judge as

the basis for plaintiff's residual functional capacity. Plaintiff contends that the

state agency prepared two mental residual functional capacity assessments. In

both assessments, the abilities to complete a normal workday and workweek

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without interruptions from psychologically based symptoms and to perform

at a consistent pace without an unreasonable number and length of rest

periods, was found to be moderately limited. The vocational expert

acknowledged on cross-examination that she had not considered those

limitations when testifying concerning jobs available to plaintiff. Chavis

maintains that by failing to account for these limitations, the testimony of the

vocational expert does not constitute substantial evidence that jobs exist in

substantial numbers for an individual matching either of the hypothetical

vocational profiles. 

• The administrative law judge failed to analyze the effects of plaintiff's obesity

as required by Social Security Ruling 02-1p. Plaintiff argues that the

administrative law judge was required to consider her obesity in combination

with her other impairments at all stages of the sequential evaluation. The

administrative law judge must do more than mention the fact of obesity in

passing. Here, the Court should remand the case in order for the

administrative law judge to analyze Chavis’s limitations and how her obesity

impacted her ability to function and work. 

• The administrative law judge failed to properly assess the limitations and

symptoms of interstitial cystitis as required by Social Security Ruling 02-2p.

Plaintiff maintains that the administrative law judge improperly concluded

that her allegations of constant diarrhea and no appetite were not credible

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based on her weight of over 200 pounds. Plaintiff argues that the assertion that

these conditions cannot coexist is a medical opinion that the administrative

law judge is not entitled to make. The administrative law judge failed to apply

Social Security Ruling 02-2p. The administrative law judge failed to consider

the possibility that plaintiff symptoms of her mental impairment could be

attributed to her interstitial cystitis. 

Analysis. Credibility Determinations: Controlling Law. Pain is an elusive

phenomena. Ultimately, no one can say with absolute certainty whether another

person's subjectively disabling pain and other symptoms preclude all substantial

gainful employment. The Social Security Act requires that the claimant establish that he

is disabled. Under the Act, a "disability" is defined as "inability to engage in any

substantial gainful activity by reason of any medically determinable or mental impairment

which can be expected . . . to last for a continuous period of not less than 12 months. . .

." 42 U.S.C. §423(d)(1)(A) (emphasis added).

Under the provisions of 42 U.S.C. §423(d)(5)(A), subjective symptoms alone

cannot prove disability. There must be objective medical evidence of an impairment

that could reasonably be expected to produce disabling pain or other symptoms :

An individual's statement as to pain or other symptoms shall not

alone be conclusive evidence of disability as defined in this section;

there must be medical signs and findings, established by medically

acceptable clinical or laboratory diagnostic techniques, which show

the existence of a medical impairment that results from anatomical,

physiological, or psychological abnormalities which could

reasonably be expected to produce the pain or other symptoms

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alleged and which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and persistence of such

pain or other symptoms which may reasonably be accepted as

consistent with the medical signs and findings), would lead to a

conclusion that the individual is under a disability. Objective

medical evidence of pain or other symptoms established by

medically acceptable clinical or other laboratory techniques (for

example, deteriorating nerve or muscle tissue) must be considered in

reaching a conclusion as to whether the individual is under a

disability.

The Commissioner’s regulations provide a framework for evaluating a claimant’s

symptoms consistent with the commands of the statute:

(a) General. In determining whether you are disabled, we consider

all your symptoms, including pain, and the extent to which your

symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence. By objective medical

evidence, we mean medical signs and laboratory findings as defined

in §404.1528(b) and (c). By other evidence, we mean the kinds of

evidence described in §§404.1512(b)(2) through (6) and

404.1513(b)(1), (4), and (5) and (e). These include statements or

reports from you, your treating or examining physician or

psychologist, and others about your medical history, diagnosis,

prescribed treatment, daily activities, efforts to work and any other

evidence showing how your impairment(s) and any related

symptoms affect your ability to work. We will consider all of your

statements about your symptoms, such as pain, and any description

you, your physician, your psychologist, or other persons may

provide about how the symptoms affect your activities of daily living

and your ability to work. However, statements about your pain or

other symptoms will not alone establish that you are disabled; there

must be medical signs and laboratory findings which show that you

have a medical impairment(s) which could reasonably be expected to

produce the pain or other symptoms alleged and which, when

considered with all of the other evidence (including statements about

the intensity and persistence of your pain or other symptoms which

may reasonably be accepted as consistent with the medical signs and

laboratory findings), would lead to a conclusion that you are

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disabled. In evaluating the intensity and persistence of your

symptoms, including pain, we will consider all of the available

evidence, including your medical history, the medical signs and

laboratory findings and statements about how your symptoms affect

you. (Section 404.1527 explains how we consider opinions of your

treating source and other medical opinions on the existence and

severity of your symptoms, such as pain.) We will then determine

the extent to which your alleged functional limitations and

restrictions due to pain or other symptoms can reasonably be

accepted as consistent with the medical signs and laboratory findings

and other evidence to decide how your symptoms affect your ability

to work.

20 C.F.R. §404.1529(a). A claimant’s symptoms will not be found to affect his ability to

work unless there is a medically determinable impairment that could reasonably be

expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then

evaluates the intensity and persistence of the claimant’s pain and other symptoms and

determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In

making the determination, the Commissioner considers

all of the available evidence, including your history, the signs and

laboratory findings, and statements from you, your treating or nontreating

source, or other persons about how your symptoms affect you. We also

consider the medical opinions of your treating source and other medical

opinions . . . .

Id.

In this evaluation of a claimant’s symptoms, the Commissioner considers both

objective medical evidence and “any other information you may submit about your

symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:

Because symptoms, such as pain, are subjective and difficult to quantify,

any symptom-related functional limitations and restrictions which you,

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your treating or nontreating source, or other persons report, which can

reasonably be accepted as consistent with the objective medical evidence

and other evidence, will be taken into account as explained in paragraph

(c)(4) of this section in reaching a conclusion as to whether you are

disabled. We will consider all of the evidence presented, including

information about your prior work record, your statements about your

symptoms, evidence submitted by your treating or nontreating source,

and observations by our employees and other persons. Section 404.1527

explains in detail how we consider and weigh treating source and other

medical opinions about the nature and severity of your impairment(s) and

any related symptoms, such as pain. Factors relevant to your symptoms,

such as pain, which we will consider include:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication

you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and

restrictions due to pain or other symptoms.

 20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s

symptoms limit his ability to work, the Commissioner considers whether the claimant’s

statements about the symptoms is supported by or inconsistent with other evidence of

record:

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In determining the extent to which your symptoms, such as pain, affect

your capacity to perform basic work activities, we consider all of the

available evidence described in paragraphs (c)(1) through (c)(3) of this

section. We will consider your statements about the intensity, persistence,

and limiting effects of your symptoms, and we will evaluate your

statements in relation to the objective medical evidence and other

evidence, in reaching a conclusion as to whether you are disabled. We will

consider whether there are any inconsistencies in the evidence and the

extent to which there are any conflicts between your statements and the

rest of the evidence, including your history, the signs and laboratory

findings, and statements by your treating or nontreating source or other

persons about how your symptoms affect you. Your symptoms, including

pain, will be determined to diminish your capacity for basic work

activities to the extent that your alleged functional limitations and

restrictions due to symptoms, such as pain, can reasonably be accepted as

consistent with the objective medical evidence and other evidence.

 20 C.F.R. § 404.1529(c)(4). SSR 96-7p explains the two-step process established by the

Commissioner’s regulations for evaluating a claimant’s symptoms and their effects: 

First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment(s)--i.e., an impairment(s)

that can be shown by medically acceptable clinical

and laboratory diagnostic techniques--that could reasonably be

expected to produce the individual’s pain or other symptoms. The

finding that an individual’s impairment(s) could reasonably be

expected to produce the individual’s pain or other symptoms does

not involve a determination as to the intensity, persistence, or

functionally limiting effects of the individual’s symptoms. . . .

 Second, once an underlying physical or mental impairment(s) that

could reasonably be expected to produce the individual’s pain or

other symptoms has been shown, the adjudicator must evaluate

the intensity, persistence, and limiting effects of the individual’s

symptoms to determine the extent to which the symptoms limit

the individual’s ability to do basic work activities. For this

purpose, whenever the individual’s statements about the intensity,

 persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,

the adjudicator must make a finding on the credibility of the individual’s

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statements based on a consideration of the entire case record. 

When additional information is needed to assess the credibility of

the individual’s statements about symptoms and their effects, the

adjudicator must make every reasonable effort to obtain available

information that could shed light on the credibility of the

individual’s statements. In recognition of the fact that an

individual’s symptoms can sometimes suggest a greater level of

severity of impairment than can be shown by the objective

medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)

describe the kinds of evidence, including the factors below, that

the adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an

individual’s statements:

1. The individual’s daily activities;

2. The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, the individual receives

 or has received for relief of pain or other symptoms;

6. Any measures other than treatment the individual uses

or has used to relieve pain or other symptoms (e.g. lying

flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

Case law interpreting the statute and regulations. At the outset, it is important to

keep in mind that symptoms are the claimant’s “description of [his/her] physical or

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mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves

making credibility determinations about the reliability of the claimant’s self-report of

his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed.Appx. 57, 62 (10th Cir. December.

5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”) 

“Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” 

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186

(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 853 (6th Cir. 1986). First, the Court must determine "whether there

is objective medical evidence of an underlying medical condition." If so, the Court must

then

examine: (1) whether objective medical evidence confirms the

severity of the alleged pain arising from the condition; or (2)

whether the objectively established medical condition is of such a

severity that it can reasonably be expected to produce the alleged

disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);

Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is

required to explain her credibility determination in her decision, which “‘must be

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sufficiently specific to make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the reasons for that

weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249. 

Discussion of ALJ’s credibility determination. The administrative properly

evaluated plaintiff’s credibility:

After careful consideration of the evidence, the undersigned finds that the

claimant’s medically determinable impairments could reasonably be

expected to cause symptoms; however, the allegations concerning the

intensity, persistence and limiting effects of these symptoms are not

credible to the extent they are inconsistent with the above residual

functional capacity. The claimant clearly has significant impairments,

symptoms and limitations, but for the following reasons it is found that

they are not quite as debilitating as alleged. 

In terms of the claimant’s alleged physical impairments, the undersigned

finds that the record possesses evidence that undermines her allegations

of disability. Many of the examinations of the claimant’s gastrointestinal

system yielded unremarkable findings. During a December 2009

examination, the claimant’s gastrointestinal system exhibited normal

functioning. (Exhibit 27F). In November 2009, the claimant was observed

to be comfortable–despite complaints of pain that she rated as a 10 on a

scale of 0 to 10. (Id.). In August 2009, the claimant’s gastrointestinal

system was found to be normal after a review of her systems. (Exhibit

25F).

Moreover, at the hearing the claimant complained of constant diarrhea

and no appetite. (Hearing Testimony). However, the claimant’s weight is

over 200 pounds. (Id.). Thus, the undersigned finds the claimant’s

assertions at the hearing less than credible. The undersigned also finds

that the claimant’s credibility is deficient; as the record indicates, she has a

felony conviction for forgery and a history of engaging in illicit drug use.

(Hearing Testimony). Forgery is a crime involving honesty.

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(R. 21-22.) With respect to Chavis’s mental impairment, the administrative law judge

stated:

With respect to the claimant’s alleged mental impairment of depression,

the undersigned finds that the claimant’s subjective complaints as to the

limitations of [her] impairment are not fully credible. At the hearing, the

claimant testified that she struggles with anxiety, mood swings, and

depression (Hearing Testimony). However, the record indicates that her

recent mental status examinations and GAF scores are pretty

unremarkable. Specifically, in October 2010, the claimant was observed as

being well groomed and dressed, and exhibiting normal speech, good eye

contact, fairly reactive affect, linear, logical, and goal directed thought

process, no suicidal or homicidal ideations, and fairly good insight and

judgment. (Exhibit 28F).

During an August 2010 mental status examination, the claimant displayed

cooperativeness, normal speech, good eye contact, a reactive affect, linear,

logical, and goal oriented thought process, no suicidal or homicidal

ideations, no psychosis, fair insight, judgment, and impulse control. She

was alert and oriented. There was no abnormal motor activity. (Id.).

Moreover, her GAF score was 60 to 65 indicating moderate to mild

symptoms. (Id.). In June, April, March, and January 2010, the claimant

exhibited similar behavior during mental status examinations, and

registered GAF scores of 65, 65, 55, and 55 to 65, respectively.

Further, the claimant has not been hospitalized for psychiatric reasons

since her alleged onset date. Treatment notes also indicate that the

claimant has responded positively to treatment, and has exhibited more

control over her depression and anxiety-related symptoms. (Exhibit 32F).

The many unremarkable mental status examinations and GAF scores of

the claimant undermine her assertions as to the severity of her mental

impairments. Thus, the restrictions included in the residual functional

capacity articulated above accommodate the claimant’s alleged mental

impairments. 

(R. 22-23.) The administrative law judge properly evaluated plaintiff’s mental

impairment. He reasonably determined that plaintiff’s bipolar disorder was severe.

Despite plaintiff’s allegations concerning post-traumatic stress disorder and a

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personality disorder, these disorders were not consistently diagnosed by plaintiff’s

treatment providers. Dr. Layne diagnosed plaintiff with bipolar disorder, which

indicates that his belief that this description adequately described her array of

symptoms. Although Dr. Layne repeatedly discussed plaintiff’s symptoms of

depression and anxiety, he did not identify depression and anxiety as separate

impairments. 

It was not improper for the administrative law judge to consider plaintiff’s felony

conviction or history of drug abuse. Additionally, the administrative law judge did not

err when he concluded that plaintiff’s weight did not support her allegations

concerning ongoing diarrhea and loss of appetite. The administrative law judge’s

credibility determination is supported by substantial evidence. 

Treating Doctors’ Opinions. Plaintiff argues that the administrative law

judge erred in rejecting the opinions of Drs. Layne and Robitaille.

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The Commissioner’s regulations define “medical opinions” as “statements from

physicians and psychologists or other acceptable medical sources that reflect judgments

about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often

express more than one medical opinion, including “at least one diagnosis, a prognosis

and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at

*2. When an administrative law judge fails to give a good reason for rejecting a treator’s

medical opinion, remand is required unless the failure does not ultimately affect the

decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not

committed where the treator’s opinion “is patently deficient that the Commissioner

could not possibly credit it;” the administrative law judge’s findings credit the treator’s

opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.

§ 1527(d)(2) but does not technically meet all its requirements. Id.

34

Treating Doctor: Legal Standard. A treating doctor's opinion1

 on the issue of

disability is entitled to greater weight than that of a physician who has examined

plaintiff on only one occasion or who has merely conducted a paper review of the medical evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d 53, 55 (6th

Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir.

1983). The Commissioner’s regulations explain that Social Security generally gives

more weight to a treating doctors’ opinions because treators are usually “most able to

provide a detailed, longitudinal picture” of the claimant’s medical impairments. 20

C.F.R. § 404.1527(d)(2). When the treating doctor’s opinion “is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case record” the Commissioner

“will give it controlling weight. “ Id.

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Section 404.157(a)(1) provides:

You can only be found disabled if you are unable to do any substantial

gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12

months. See §404.1505. Your impairment must result from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. See

§404.1508.

35

Even though a claimant's treating physician may be expected to have a greater

insight into his patient's condition than a one-time examining physician or a medical

adviser, Congress specifically amended the Social Security Act in 1967 to provide that to

be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A). 

Consequently, a treating doctor's opinion does not bind the Commissioner when it is

not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and

Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973

(6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v.

Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d),

404.1526(b), and 404.1527(a)(1)2

.

The Commissioner's regulations provide that she will generally "give more

weight to the opinion of a source who has examined you than to the opinion of a source

who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a treating source's

opinion "is well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight." 20 C.F.R. § 404.1527(d)(2). In determining

the weight to assign a treating source's opinion, the Commissioner considers the length

of the relationship and frequency of examination; nature and extent of the treatment

relationship; how well-supported the opinion is by medical signs and laboratory

findings; its consistency with the record as a whole; the treating source's specialization;

the source's familiarity with the Social Security program and understanding of its

evidentiary requirements; and the extent to which the source is familiar with other

information in the case record relevant to decision. Id. Subject to these guidelines, the

Commissioner is the one responsible for determining whether a claimant is disabled. 20

C.F.R. § 404.1527(e)(1).

Social Security Ruling 96-2p provides that "[c]ontrolling weight cannot be given

to a treating source's medical opinion unless the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques." Consequently, the decisionmaker must have “an understanding of the clinical signs and laboratory findings and

what they signify." Id. When the treating source's opinion “is well-supported and not

inconsistent with the other substantial evidence in the case record, it must be given

controlling weight . . . .” The Commissioner’s regulations further provide that the

longer a doctor has treated the claimant, the greater weight the Commissioner will give

his or her medical opinion. When the doctor has treated the claimant long enough “to

have obtained a longitudinal picture of your impairment, we will give the source’s

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[opinion] more weight than we would give it if it were from a non-treating source.” 20

C.F.R. §404.1527(d)(2)(I). 

The Commissioner has issued a policy statement about how to assess treating

sources’ medical opinions. Social Security Ruling 96-2p. It emphasizes:

1. A case cannot be decided in reliance on a medical opinion without

some reasonable support for the opinion.

2. Controlling weight may be given only in appropriate circumstances

to medical opinions, i.e., opinions on the issue(s) of the nature and

severity of an individual’s impairment(s), from treating sources.

3. Controlling weight may not be given to a treating source’s medical

opinion unless the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques.

4. Even if a treating source’s medical opinion is well-supported,

controlling weight may not be given to the opinion unless it also is

“not inconsistent” with the other substantial evidence in the case

record.

5. The judgment whether a treating source’s medical opinion is wellsupported and not inconsistent with the other substantial evidence

in the case record requires an understanding of the clinical signs

and laboratory findings and what they signify.

6. If a treating source’s medical opinion is well-supported and not

inconsistent with the other substantial evidence in the case record,

it must be given controlling weight; i.e., it must be adopted.

7. A finding that a treating source’s medical opinion is not entitled to

controlling weight does not mean that the opinion is rejected. It

may still be entitled to deference and be adopted by the

adjudicator.

Even when the treating source’s opinion is not controlling, it may carry sufficient

weight to be adopted by the Commissioner:

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Adjudicators must remember that a finding that a treating source medical

opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial

evidence in the case record means only that the opinion is not entitled to

"controlling weight," not that the opinion should be rejected. Treating

source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In

many cases, a treating source's medical opinion will be entitled to the

greatest weight and should be adopted, even if it does not meet the test for

controlling weight.

SSR 96-2p.

The case law is consistent with the principles set out in Social Security Ruling 96-

2p. A broad conclusory statement of a treating physician that his patient is disabled is

not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating

physician's opinion to have controlling weight it must have "sufficient data to support

the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th

Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may

reject the treating doctor's opinions when "good reasons are identified for not accepting

them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 404.1527(d)(2)("We

will always give good reasons in our notice of determination or decision for the weight

we give your treating source's opinion"); Wilson v. Commissioner of Social Security, 378

F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a

treator’s opinion controlling weight, the decision-maker must evaluate the treator’s

opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable

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presumption that the treating physician's opinion "is entitled to great deference." Rogers

v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The

Commissioner makes the final decision on the ultimate issue of disability. Warner v.

Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human

Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v.

Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982). 

Treating Doctor: Discussion. The administrative law judge rejected the opinions

of Drs. Layne and Robitaille:

In October 2010, Dr. Layne assessed the claimant’s mental residual

functional capacity. (Exhibit 29F). As a result of his assessment, Dr. Layne

opined that the claimant suffered from marked limitations in the areas of

social interaction, sustained concentration and persistence, and adaption.

(Id.). Dr. Robitaille also assessed the claimant’s mental residual functional

capacity, and opined that she suffered from extreme limitations in the

aforementioned areas. (Exhibit 30F). Despite the treating relationships Drs.

Layne and Robitaille share with the claimant, their opinions are not

consistent with the medical evidence in the record.

As discussed above, mental status examinations of the claimant have

yielded many unremarkable findings, and her GAF scores have been

rather normal. (Exhibit 28F). In light of the claimant’s mental status

examinations and GAF scores, the opinions articulated by Drs. Layne and

Robitaille that the claimant is not able to sustain concentration and

persistence or adapt to workplace situations 50% of the day etc are not

supported by the record. (Exhibits 28F. 29F and 30F). In addition, because

the opinions and medical source statements of Drs. Layne and Robitaille

were being premised on compensation purposes, the undersigned finds

the mental status examination in their treatment notes to be more

persuasive. Treatment records are generally entitled to more weight than

checklists prepared exclusively for compensation purposes. Thus, the

undersigned finds their functional opinions to be inconsistent with the

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records as a whole, including their own treatment records and GAF scores

and to merit little weight.

(R. 24.) 

As an initial matter, plaintiff’s contention that the administrative law judge

slandered Drs. Layne and Robitaille is without merit. The administrative law judge’s

statement concerning “compensation purposes” does not relate to compensation the

doctors received in return for the opinions. Rather, the administrative law judge is

referring to opinions that were issued to demonstrate entitlement to disability benefits.

The administrative law judge properly considered whether the opinions made

concerning eligibility for Social Security were supported by the treatment notes. He

concluded that they were not. The administrative law judge gave sufficient reasons for

rejecting the opinions of Drs. Layne and Robitaille and adopting the opinions of Drs.

McCloud, Sours, Waddell, Williams, and Edwards. 

Accuracy of Hypothetical Given Vocational Expert: Legal Standard. Plaintiff

argues that the Administrative Law Judge's hypothetical to the vocational expert was

not supported by substantial evidence because it failed to include that plaintiff had

moderate limitations in her abilities to complete a normal workday and workweek

without interruptions from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest period.

In determining whether a claimant is disabled, an administrative law judge

makes a residual functional capacity determination. That finding is an “assessment of

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the claimant’s remaining capacity for work" once his or her limitations have been taken

into account. 20 C.F.R. § 416.945. It is “a more complete assessment of her physical and

mental state and should include an ‘accurate[ ] portray[al] [of her] individual physical

and mental impairment[s].’ Varley, 820 F.2d at 779; Myers v. Weinberger, 514 F.2d 293,

294 (6th Cir.1975) (per curiam).” Howard v. Commissioner of Social Security, 276 F.3d 235,

239 (6th Cir. 2002).

When a vocational expert testifies, the administrative law judge asks the expert

to assume certain facts about the claimant’s work abilities. The facts in this hypothetical

are the administrative law judge’s residual functional capacity findings. The

administrative law judge must accurately state each limitation that affects the claimant’s

ability to work. If there is not substantial evidence supporting the limitations the

administrative law judge includes in the hypothetical to the vocational expert, then the

expert’s testimony is not substantial evidence supporting the Commissioner’s decision

denying benefits. Howard, 276 F.3d at 240-42. If a limitation that substantially affects

the claimant’s ability to work is established by uncontroverted medical evidence, it is

error for the administrative law judge to omit this limitation from the hypothetical

given the administrative law judge. 276 F.3d at 242. 

Accuracy of Hypothetical Given Vocational Expert: Discussion. The

administrative law judge concluded that plaintiff retained the residual functional

capacity to perform light work as defined in 20 CFR §§ 414.1567(b) and 416.967(b) such

that the claimant can lift and carry 20 pounds occasionally, and 10 pounds frequently,

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sit for a total of 6 hours in an 8 hour workday with normal breaks, and push and pull

within those limitations. Plaintiff could not climb ladders, ropes, or scaffolds. Plaintiff

was limited to simple, routine tasks, with only occasional contact with coworkers and

no contact with the public. 

Plaintiff argues that the state agency psychologists’ findings of moderate

limitations in her abilities to complete a normal workday and workweek without

interruptions and to perform at a consistent pace should have been included in the

administrative law judge’s hypothetical question posed to the vocational expert. The

administrative law judge formulated a residual functional capacity assessment that was

consistent with Dr. Waddell’s opinion that plaintiff retained the ability to complete

simple and complex tasks in a relatively static setting that did not require a fast pace,

high production quotas, or significant interaction with others. (R. 23-24, 747.) Drs.

Williams and Edwards concluded that plaintiff retained to the ability to perform

complex tasks, interact in simple work-site exchanges, make simple work-site

adjustments, and maintain a schedule of work-like activities. (R. 23-24, 1211, 1328.) The

vocational expert identified jobs that were based on the administrative law judge’s

hypothetical question. The administrative law judge was not required to include

limitations in the hypothetical question that he concluded were not supported by

substantial evidence. 

Obesity. Plaintiff argues that the administrative law judge failed to consider the

impact of her obesity on her ability to work as required by SSR 00-3p. The

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administrative law judge acknowledged that plaintiff weighed over 200 pounds.

Plaintiff does not point to any treatment for her obesity or identify any functional

limitations attributed to her weight. Although Dr. Graham noted that plaintiff had a

Body Mass Index of 31, he indicated that she did not have any corresponding

complications as a result. (R. 1359.) Because plaintiff has not identified any evidence

demonstrating that her obesity caused functional limitations, the administrative law

judge did not err in failing to identify plaintiff’s obesity as a severe impairment. Casey v.

Sec. of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)(“Plaintiff has the

ultimate burden of establishing the existence of disability.”). 

SSR 02-2p. The introduction to the Social Security Ruling 02-2p recognizes that

interstitial cystitis is a medically determinable impairment that may be the basis for a

finding of disability. 

The Act and our implementing regulations require that an individual

establish disability based on the existence of a medically determinable

impairment; that is, one that can be shown by medical evidence, consisting of symptoms, signs, and laboratory findings. Disability may not be

established on the basis of an individual's statement of symptoms alone.

This Ruling explains that IC (a complex, chronic bladder disorder), when

accompanied by appropriate symptoms, signs, and laboratory findings, is

a medically determinable impairment that can be the basis for a finding of

"disability." It also provides guidance for the evaluation of claims

involving IC.

The Ruling states that interstitial cystitis “is a complex, chronic bladder disorder

characterized by urinary frequency, urinary urgency, and pelvic pain.” SSR 02-2p, ¶ 1.

The symptoms vary, response to treatment varies, and in some cases treatment fails:

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The symptoms of IC may vary in incidence, duration, and severity. The

causes of IC are currently unknown, and treatments are directed towards

relief of symptoms. While no treatment is uniformly effective for everyone, there are many treatments available, and individuals may obtain

some measure of relief. However, response to treatment is variable, and

some individuals may have symptoms that are intractable to the current

treatments available. Treatment may include bladder distention; bladder

instillation; oral drugs, such as the prescription drug Elmiron, antidepressants, antihistamines, and narcotic analgesics; and the use of transcutaneous electrical nerve stimulation.

Id. The Ruling provides that interstitial cystitis alone may be disabling:

 6. Can We Find an Individual Disabled Based on IC Alone?

If an individual has the medically determinable impairment IC that is "severe" as

described in question 7 below, we may find that the IC medically equals a listing,

if appropriate. (See 20 CFR 404.1525 and 416.925.) (In the case of a child seeking

benefits under title XVI, we also may find that it functionally equals the listings

(20 CFR 416.926a).) We also may find in a title II claim, or an adult claim under

title XVI, that the IC results in a finding that the individual is disabled based on

his or her residual functional capacity (RFC), age, education, and past work

experience.

SSR 02-2p, ¶ 6.

When making a residual functional capacity determination, the decision-maker

must consider the impact of interstitial cystitis:

IC can cause limitation of function. The functions likely to be limited depend on

many factors, including urinary frequency and pain. An individual may have

limitations in any of the exertional functions such as sitting, standing, walking,

lifting, carrying, pushing, and pulling. It also may affect ability to do postural

functions, such as climbing, balancing, stooping, and crouching. The ability to

tolerate extreme heat, humidity, or hazards also may be affected.

The effects of IC may not be obvious. For example, many people with IC have

chronic pelvic pain, which can affect the ability to focus and sustain attention on

the task at hand. Nocturia (nighttime urinary frequency) may disrupt sleeping

patterns. This can lead to drowsiness and lack of mental clarity during the day.

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IC also may affect an individual's social functioning. The presence of urinary

frequency alone can necessitate trips to the bathroom as often as every 10 to 15

minutes, day and night. Consequently, some individuals with IC essentially may

confine themselves to their homes. In assessing RFC, we must consider all of the

individual's symptoms in deciding how such symptoms may affect functional

capacities.

SSR 02-2p, Sequential Evaluation, ¶ 1.

Plaintiff argues that the administrative law judge failed to evaluate her

interstitial cystitis in the manner mandated by SSR 02-2p, indeed, he did not even

mention the ruling.

While it is not necessarily error for an administrative law judge to fail to

explicitly reference a Social Security Ruling in making a disability determination, the

decision must fairly set out the legal framework for the disability determination and

support that determination with substantial evidence. Here, the administrative law

judge failed to examine the intensity persistence, and limiting effects of plaintiff’s

interstitial cystitis. The decision is void of any discussion of the limitations imposed by

plaintiff’s impairment. As a result, the administrative law judge’s decision does not

demonstrate that he followed Social Security Ruling 02-2p in making his decision.

Accordingly, it is RECOMMENDED that this case be REMANDED to the

Commissioner for further consideration of plaintiff Chavis’s application for disability

benefits consistent with SSR 02-2p.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

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Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

 s/Mark R. Abel 

United States Magistrate Judge 

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